Constitutionally Conforming Agency Adjudication
Jennifer L. Mascott, J.D.*
In May 2017, the U.S. Court of Appeals for the D.C. Circuit reconsidered
en banc1 a panel holding that administrative law judges (“ALJs”) for the
Securities and Exchange Commission (“SEC”) are just employees—not
“Officers of the United States.” 2 As employees the ALJs would fall outside
the Constitution’s Appointments Clause requirements in Article II. 3 But the
original D.C. Circuit panel’s opinion directly conflicts with a recent Tenth
Circuit decision finding the SEC ALJs are “officers” within the scope of the
Article II Clause. 4 In June 2017, the D.C. Circuit issued a judgment
indicating the en banc court was equally divided in the ALJ case5—
essentially reaffirming the D.C. Circuit’s earlier panel decision, 6 continuing
the split with the Tenth Circuit, and making this issue subject to likely
consideration by the Supreme Court.
The final determination of whether the ALJs are “officers” with
Assistant Professor of Law, Antonin Scalia Law School at George Mason University. Earlier
drafts of this article were written as an Olin/Searle Fellow in Law affiliated with Georgetown
University Law Center and the George Washington University Law School. Thanks to Kent
Barnett, Jason Iuliano, Michelle Layser, Alex Lemann, Brian Lipshutz, Aaron Nielson, and
Christopher Walker for helpful comments and conversations.
1. Raymond J. Lucia Cos., Inc. v. S.E.C., No. 15-1345, 2017 U.S. App. LEXIS 2732
(D.C. Cir. Feb. 16, 2017), en banc pet’n denied by 2017 U.S. App. LEXIS 11298 (D.C. Cir.
June 26, 2017).
2. Raymond J. Lucia Cos., Inc. v. S.E.C., 832 F.3d 277, 280, 283–84 (D.C. Cir. 2016),
vacated and reh’g en banc granted, 2017 U.S. App. LEXIS 2732, at 2 (D.C. Cir. Feb. 16,
3. U.S. CONST. art. II, § 2, cl. 2 (“The President . . . shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”).
4. Bandimere v. S.E.C., 844 F.3d 1168, 1170 (10th Cir. 2016).
5. Raymond J. Lucia Cos., Inc. v. S.E.C., No. 15-1345, 2017 U.S. App. LEXIS 11298
(D.C. Cir. June 26, 2017).
6. See id. (denying the en banc petition for review pursuant to D.C. Cir. Rule 35(d), which
provides that when “the en banc court divides evenly, a new judgment affirming the decision
under review will be issued”).